-“According to the United States Space Command catalogue, over
a span of forty years spacecraft have
deposited nearly 10,000 traceable objects of measurable size into earth's orbit. 9 Scientists
estimate that objects between one centimeter and ten centimeters in size number
as high as 110,000 pieces. 10 The number
of smaller fragments between one millimeter and one centimeter is believed to
be at least 35 million. 11 The number
of microparticularate pieces left by spacecraft is estimated to be in the
trillions. 12Human-made
space debris, the focus of this paper, poses
the primary risk to human activities.13
Natural debris usually escapes Earth's orbits where spacecraft and satellites
are commonly found. 14
Human-made debris, on the other hand, tends to remain in Earth's orbits during
its lifetime. 15Human-made space debris also confines itself to the orbits most
needed by spacecraft and satellites, clogging them much quicker than natural
debris.16”

-“The primary injury-related problem caused by space debris is
the risk of damage from collision with spacecraft or astronauts. 34
What makes these particles extraordinarily dangerous is their extremely
high speed, which ranges from 11,000 to
35,000 kilometers per hour. 35
Thus, any collision with a space debris particle can occur with incredible
force. A collision with a fragment measuring a tenth of an inch could do more
damage than a bowling ball flying at sixty miles per hour. 36Examples abound of spacecraft colliding with space debris.37
In 1983, a paint chip struck the space shuttle Challenger. 38
The 0.2 mm fragment struck a window, requiring replacement at a cost of $
50,000. 39
In 1996, a fragment from a rocket launched ten years earlier collided with a
French spy satellite and damaged its stabilization bar. 40
In 1997, a Japanese climate observation satellite was disabled for an unknown
reason, but space debris is credited as the likely culprit. 41
In 1998, orbital debris destroyed a spent portion of a U.S. intercontinental
ballistic missile during a test flight over the Marshall Islands. 42”

-“The striking impact and near-impact examples, however, cannot
adequately address the current danger estimates to operational spacecraft. The
spacefaring nations must approach danger estimates through a statistical
analysis of the probability of impact in each discrete orbit. 69
NASA and other space organizations (such as the European Space Agency) cannot
determine the potential threat to future spacecraft and other space activities
without statistical analysis.”

-“If collisions caused only minor damage to operational
payloads, intensive scientific study and legal analysis would be unwarranted. A
brief discussion of the physical elements involved in such impacts, however,
illustrates that orbital collisions are highly energetic and can destroy
operational spacecraft or even kill unlucky astronauts. 84
There are several factors which
determine the extent and type of damage colliding debris inflicts on
operational spacecraft. The damage is a function of (1) the size and velocity
of the debris; 85
(2) the nature of the spacecraft's construction; 86
(3) the angle at which the orbital debris impacts the spacecraft; and (3) the
particular section of the spacecraft impacted. 87”

-“The result of some collisions is the catastrophic failure
of the spacecraft. The break-up ratio
estimates when a complete breakup of the spacecraft occurs: "If the ratio
of the impactor's relative kinetic energy to the mass of the object with which
it collides is greater than about 40J/g [breakup will occur]." 93In LEO, a piece of debris that is only 0.1% of a spacecraft's mass
could break up the spacecraft. 94
Even if impacting debris does not break up the operational spacecraft, the
debris can still cause significant damage. These other types of damage include
continual small debris impacts, which slowly degrade the craft surfaces and
components. 95”

-“Three treaties which
offer some assistance to the debris problem include: (1) the Treaty on
Principles Governing the Activities of States in the Exploration and Use of
Outer Space, Including the Moon and Other Celestial Bodies [hereinafter The
Outer Space Treaty]; 96
(2) the Convention on the International Liability for Damage Caused by Space
Objects [hereinafter The Liability Convention]; 97
and (3) the Convention on Registration of Objects Launched into Outer Space
[hereinafter The Registration Convention]. 98
The U.N. Committee on the Peaceful Uses of Outer Space [hereinafter the
Committee] 99
constructed these international laws. 100”

-“To date, there has not been a single reported case of force used in outer space by one nation against
another. 68
Nonetheless, given the increasing global reliance on space systems, and
increasing militarization of space, its weaponization and evolution
into a distinct theater of military operations seems likely.”

oRamey, Major Robert A. “Armed Conflict on the Final
Frontier: The Law of War in Space”, 48 A.F. L. Rev. 1, 18, 2000

-“The most significant military effect of nuclear blasts in
space relates to the creation of an electromagnetic pulse (EMP) in
near-earth space where the outer space
vacuum contacts the atmosphere. 75
An EMP is created when "a cascade of gamma rays from any nuclear explosion
in space collides with the upper atmosphere." 76
As these gamma rays race nearly instantaneously downward toward the top of
earth's atmosphere, resultant charge imbalances create an electrical current
that peaks 100 times faster than lightning, and is largely unrelated to the
size of the detonation for any yield over a few hundred kilotons. 77
Similar to a lightning strike, the EMP lasts only for a millionth of a second
but holds potential for devastation of sensitive circuitry. Unshielded
electronics within several hundred miles of the epicenter may be disabled as
every unshielded element in its path acts as a conductor. The higher the burst, the larger the area affected
in the air and land beneath. A burst at a height of 300 miles (483
km) would affect the entire continental U.S.78
"Poorly protected satellites and solar power systems in orbit are
particularly vulnerable, because risk radii extend hundreds (sometimes
thousands) of miles farther in space than in absorbent air." 79”

oRamey, Major Robert A. “Armed Conflict on the Final
Frontier: The Law of War in Space”, 48 A.F. L. Rev. 1, 20, 2000

-“Kinetic energy weapons, of which hypervelocity weapons are a
subtype, are historically the most common forms of space weaponry. As suggested
above, given the tremendous speeds at which objects travel in orbit, on the
order of 4.7 miles per second in low-earth orbit, just about anything properly
aimed could become a weapon even without the use of an explosive warhead. This
is true because such an object's speed, including those of very small masses,
gives it tremendous kinetic energy for impact. 88”

oRamey, Major Robert A. “Armed Conflict on the Final
Frontier: The Law of War in Space”, 48 A.F. L. Rev. 1, 22, 2000

-“At present, the U.S. is developing space, air, and
ground-based lasers for possible use as weapons against enemy missiles and
satellites. One of the two principal U.S.
ground-based lasers is the Mid-Infrared Advanced Chemical Laser (MIRACL). 98
As the name suggests, the laser beam is generated by chemical reactions,
produced by deuterium fluoride, resulting in a focused beam that is fourteen cm
square. 99…

oRamey, Major Robert A. “Armed Conflict on the Final
Frontier: The Law of War in Space”, 48 A.F. L. Rev. 1, 24, 2000

-“These principles, recognized in subsequent treaty law, limit
the means and methods available to belligerents for conducting armed conflicts,
and thus each demands restraint of the belligerent State. 144Because there are no treaties establishing specific jus in bello principles
for space combat, these customary
principles provide the most authoritative source, subject to the specific
principles of space law discussed in Chapters Four and
Five, on which the analysis of a jus in bello for space must
proceed.”

oRamey, Major Robert A. “Armed Conflict on the Final
Frontier: The Law of War in Space”, 48 A.F. L. Rev. 1, 35, 2000

-“Given its recent origin, and the fact that it is
predominantly driven by technological advances in the exploration and use of
space, space law is a discipline in
transition--additional norms continue to
emerge as space technology advances. 'Space law' is
defined as that comprising "all international and national legal rules and
principles which govern the exploration and use of outer space by States,
international organizations, private persons and companies." 283
Significantly, this broad definition reflects the rise of national legislation
governing outer space activity, as well as of non-State actors in the
increasingly commercialized and privatized space industry.”

oRamey, Major Robert A. “Armed Conflict on the Final
Frontier: The Law of War in Space”, 48 A.F. L. Rev. 1, 64, 2000

-“Thus, while it is a recent phenomenon, space
law today is a firmly established discipline resting essentially
on five multilateral treaties.”

oRamey, Major Robert A. “Armed Conflict on the Final
Frontier: The Law of War in Space”, 48 A.F. L. Rev. 1, 65, 2000

-“It is difficult to overstate the preeminent place in space law enjoyed by the first international treaty governing
outer space, commonly known as the Outer Space Treaty. 316 Drawn principally
from three previous United Nations General Assembly (U.N.G.A.) Resolutions, 317the
Outer Space Treaty is termed everything from "an ideological charter for
the space age" 318 to the "Magna
Carta of outer space
law."319 Of the five
multilateral treaties dealing specifically with outer space activities, it
is the most important "by far."320 As a
result, it is the legal source of first resort for the analysis of any space law topic. the Outer Space Treaty specifies that
"Outer space, including the moon and other celestial bodies, is not
subject to national appropriation by claim of sovereignty, by means of use or
occupation, or by any other means." 322
Of the many activities this provision clearly prohibits, it has generated some
debate relating to its scope. For example, commentators are divided over its
application to private, non-governmental claims of ownership [*75] over celestial bodies.
323
Increasing private investment in space makes this a live issue that military
users of space must understand.”

oRamey, Major Robert A. “Armed Conflict on the Final
Frontier: The Law of War in Space”, 48 A.F. L. Rev. 1, 74, 2000

Liability
for Damage Caused by Space Objects

-“Following the drafting and entry into force of the 1967 Outer
Space Treaty, which left uncertain the scope of the term "damage,"
COPUOS resumed its deliberations on what was to become the Convention on
International Liability Caused by Space Objects. 38
The General Assembly adopted resolutions encouraging action by COPUOS annually
from 1967 through 1971. 39
… The Liability for Damages Convention contains a set of rules that
supplements the provisions of the 1967 treaty.Its coverage is broad
since it "makes no distinction between civil and military space objects and applies equally to each."

-“Article VII [of the Outer Space Treaty of 1967] discusses the
liability of one State, party to the treaty, to another State, also party to
the treaty, for damage caused by an object: Each State Party to the Treaty
that launches or procures the launching of an object into outer space, including
the moon and other celestial bodies and each State Party from whose territory
or facility an object is launched, is internationally liable for damage to
another State Party to the Treaty or to its natural or juridical persons by
such object or its component parts on the Earth, in air space or in outer space, including the moon and other
celestial bodies. 103”

-“Article VII suffers from a more fundamental flaw: it does
not clearly define an "object."108
Is an "object" anything launched into space by humans which is still
functional? What if a fairly obtuse State Party to the Treaty launched a rock
into orbit; would it be liable for damage to another State caused by this
object? Article VII also does not indicate what recourse a participating State
has if the damaging debris is unidentifiable. 109”

-“On September 1, 1972, approximately five years after the
signing of the Outer Space Treaty, the Committee enacted the Liability
Convention. 112
In part, the Convention states: [states are liable for damage] caused
elsewhere than on the surface of the Earth to a space object of one launching
State or to persons or property on board such a space object of another
launching state . . . only if the damage is due to its fault [emphasis added] or the fault of persons for whom it
is responsible. 113Such a fault-based liability scheme for orbital impacts creates several
legal and technical problems. The most obvious of these problems is
that the current tracking abilities of the SSN and the SSS cannot adequately
identify many types of debris.”

-“In early October 2004, SpaceShipOne was successfully "launched" from its
mother plane White Knight and
went on to complete its second journey within the space of a week to an
altitude of more than one hundred kilometers and back. As a result, Mojave
Aerospace Ventures, a company established by the vehicle's designer Burt Rutan
and financier Paul Allen, claimed the ten million dollar Ansari X Prize.”

oFreeland, Steven. “Up, Up and… Back: The Emergence of
Space Tourism and Its Impact on the International Law of Outer Space.” 6 Chi.
J. Int’l L. 1, 1, Summer 2005

-“There are five main multilateral treaties that have been
finalised through the auspices of the United Nations Committee on the Peaceful
Uses of Outer Space ("UNCOPUOS"), the principal international body
involved in the development of international space law.10 These are: (i)
Treaty on Principles Governing the Activities of States in the Exploration and
Use of Outer Space, including the Moon and other Celestial Bodies ("Outer
Space Treaty"); 11 (ii) Agreement
on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects
Launched into Outer Space ("Rescue Agreement"); 12 (iii) Convention
on International Liability for Damage Caused by Space Objects ("Liability
Convention"); 13 (iv) Convention
on Registration of Objects Launched into Outer Space ("Registration
Agreement"); 14 and (v)
Agreement Governing the Activities of States on the Moon and other Celestial
Bodies ("Moon Agreement"). 15 These five
treaties deal with various issues relating to outer space. However,
virtually all of them were formulated in the "Cold War" era when only
a relatively small number of countries had space-faring capability.”

oFreeland, Steven. “Up, Up and… Back: The Emergence of
Space Tourism and Its Impact on the International Law of Outer Space.” 6 Chi.
J. Int’l L. 1, 4, Summer 2005

-“It is clear from the terms of these treaties that, at the
time they were finalised, it had not been anticipated that humankind would
engage in commercial space tourism activities
and, as a result, they do not deal in any specific manner with such
activities.”

oFreeland, Steven. “Up, Up and… Back: The Emergence of
Space Tourism and Its Impact on the International Law of Outer Space.” 6 Chi.
J. Int’l L. 1, 4-5, Summer 2005

-“In essence, outer space is "free" for use -- tourist activities that take place in outer
space are not subject to prior consent on the part of any sovereign State. Of
course, any space tourist activities requiring a launch from earth (or an air
launch such as with SpaceShipOne) and a return to earth will also
involve a "use" of air space. In this respect, the law of air space
may be relevant to the legal position.”

oFreeland, Steven. “Up, Up and… Back: The Emergence of
Space Tourism and Its Impact on the International Law of Outer Space.” 6 Chi.
J. Int’l L. 1, 7, Summer 2005

-“There is, as observed above, no reference to space
"tourists" in the five multilateral space treaties specifically
relating to outer space. Nor was the issue directly in the minds of the United
Nations General Assembly when it adopted many of those resolutions that deal
with space activities. 35
The existing corpus of international space law does,
however, contemplate space travel by "astronauts" and "personnel
of a spacecraft." The Outer Space Treaty does not provide a definition of
an astronaut but stipulates that they are to be regarded as "envoys of
mankind."… Given
the particular status accorded to an astronaut -- an envoy of mankind -- it is
unclear whether a commercial space tourist would fall within this
classification.”

oFreeland, Steven. “Up, Up and… Back: The Emergence of
Space Tourism and Its Impact on the International Law of Outer Space.” 6 Chi.
J. Int’l L. 1, 10, Summer 2005

-“After serious negotiations and compromises, President Bush
signed the Commercial Space Launch Amendments Act of 2004 173
(Space Launch Act) into law on December 23, 2004. 174…
The Space Launch Act enacted some major protections for space tourism
businesses. Most importantly, the industry won its "fly at your own
risk" clause in 49 U.S.C.A. 70105(b)(5) which allows a
licensed party to carry space flight participants only if they "inform[]
the space flight participant in writing about the risks of the launch and
reentry, including the safety record of the launch or reentry vehicle
type," and that the United States government has not certified the vehicle
as safe. 179
After being fully informed, the participant must also give written consent. 180This appears to give space tourism businesses a great deal of freedom.”

-“49 U.S.C.A. 70105(c) was the major compromise.
Favorable to the industry, 49 U.S.C.A. 70105(c)(2) allows only minimal
regulations on space tourism vehicles. This section allows only regulations
that prohibit design features that have resulted in a serious or fatal injury,
or that may contribute to events that pose a high risk of causing a serious or
fatal injury. 186
In 2012, however, pursuant to 49 U.S.C.A. 70105(c)(3), full regulatory
control will pass to the FAA. 187
Assuming the first commercial space flights launch on schedule, the FAA will
have the power to regulate all aspects of the space tourism industry after only
five years of operation with actual space tourists.”

-“On
December 29, 2005, the FAA released its proposed regulations for public review
as mandated under the Space Launch Act. 223
While the FAA interprets the Space Launch Act to mean that "the FAA has to
wait for harm to occur or almost occur before it can impose restrictions, even
against foreseeable harm," 224
it has interpreted its power to regulate crew training and qualifications
broadly. 225
The FAA already has certain design requirements within its proposed rules, such
as defined environmental control, life support systems, and physical restraints
for persons and objects. 226
The FAA claims it is making these standards as part of its crew requirements
because environmental controls are important for the crew to function
efficiently, and space flight participants need to be restrained to keep them
"from interfering with flight crew activities.”

Sucharitkul, Sompong. “Commercial and Labor Law, Liability
and Responsibility of the State of Registration or the Flag State in Respect of
Sea-Going Vessels, Aircraft and Spacecraft Registered by National Registration
Authorities,” 54 Am. J. Comp. L. 409, Fall 2006.